THE CRIMINAL PROCESS

Infraction, Misdemeanor and Felony

    There are three types of charges:

  • Infraction  -fines only, no probation, no jail time
  • Misdemeanor -fines, probation, maximum 1 year in county jail,
  • Felony -fines, probation, up to 1 year in county jail, possibly state prison for more than 1 year, parole

 INFRACTIONS

An infraction does not carry any incarceration or jail time. There is also no probation for infractions and the only punishment is financial. This means, if you are charged with an infraction, the punishment you may receive does not include jail time.

Common infractions are seatbelt violations, simple speeding tickets, littering citations, running a red light, and failure to stop properly at a stop sign. Many times traffic school is offered for certain infractions (moving violation). Certain charges like disturbing the peace or trespassing can be charged either as an infraction or a misdemeanor depending on the circumstances.

Because of the non-criminal nature of infraction charges, the accused does not have the right to a jury trial but does have the right to face the allegations against him/her by way of a bench trial (no jury, the judge will decide the facts).

MISDEMEANOR CHARGES

A misdemeanor is a crime punishable by maximum confinement of one year in county jail.  Misdemeanors also carry fines, commonly a maximum fine of $1,000.00. Misdemeanor defendants are guaranteed certain rights because of the seriousness of the charge, including the right to an attorney and the right to a jury trial.  Misdemeanor cases can continue for several months and in unusual cases last more than a year, due to the gravity and complexity of these cases.

3 Stages of a Misdemeanor Case

ARRAIGNMENT:

A misdemeanor case can be broken down into three stages.  The first stage is called an arraignment.  At arraignment, the court asks the defendant to enter a plea of "guilty" or "not guilty."  The court does not consider whether the charges are true or not, and no evidence is presented.  In almost all cases your attorney can appear for you at the arraignment without your presence in court.  At the arraignment, the court will set pretrial and jury trial dates.  It is customary procedure to set a jury trial date, even if the case will not go to trial. The jury trial date will typically be rescheduled several times.

PRE TRIAL:

The second stage is the pretrial. At the pretrial, the prosecuting attorney and defense attorney discuss the case. The defense may ask for information and evidence from the prosecution, called discovery. The attorneys also try to negotiate a resolution acceptable to both sides. Defendants who have attorneys do not participate in the pretrial.  In most cases, your attorney can represent you at pretrial without your personal appearance. A typical case will have two or three pretrials.  Pretrials give the defense an opportunity to get all the evidence it needs, time to consider that evidence, and an opportunity to make efforts at negotiation.

TRAIL:

The third stage is trial.  Most cases do not go to trial, but are instead resolved by plea bargain.  However, every defendant in a misdemeanor case has the right to a trial by jury.

A Jury trial consists of 12 impartial jurors picked randomly from the community.  To obtain a guilty verdict, the prosecutor must prove to the jury that the defendant is guilty beyond a reasonable doubt. The jury must decide uniminsouly of either guilt or innocence.   If the jury can’t make a decision, then a mistrial maybe declared.  If a mistrial is declared, then the prosecutor has several options: 1. Refile the charges and begin a new trial 2. Negotiate a plea bargain 3. Not refile.

 Punishment
 
If the jury finds the defendant guilty, punishment can include anything from no jail with probation to 1 year in county jail. Many misdemeanors carry mandatory minimum punishments.  For example, the crime of being under the influence of narcotics (Health & Safety Code Section 11550) carries a 90 day minimum jail confinement for a first offense, and a third DUI carries a 120 day jail minimum. The legislature has taken discretion from the courts and attorneys to negotiate below certain minimum punishments on many crimes, particularly for second time and greater offenses. 

Other Consequences of a Misdemeanor Conviction

For non-citizens, a conviction may impact one's visa, immigration status, immigration applications, entry into this county, and can result in deportation.  In all pleas, a defendant initials and signs a form whereby he/she waives certain rights and indicates agreement to a negotiated sentence.              
 
If you are convicted of any drug offense, the offense of a minor in possession of alcohol, or convictions which generate points on your driving record (principally DUI or driving on a suspended license), your conviction may result in the suspension of your Driver’s License.
 
You can also lose your right to own firearms.  If you are convicted of any offense involving violence, you may be barred from possessing firearms for ten (10) years.  If you are convicted of certain sex or drug offenses, you may be required to register with your local police department as a sex or narcotics offender indefinitely.  The law enables individuals and entities outside the criminal justice system to access sex offender registration information.
 
Your Criminal Record or Rap Sheet

California Offender Record Information, “CORI”, also know as “Rap Sheets”, are documents maintained in a database by the California Department of Justice.  Under Penal Code Section 13125, once you are arrested, a record of that arrest and the subsequent activities in the resulting criminal prosecution are recorded and maintained on your “rap sheet”.  This information is available only to local and state law enforcement personnel, courts, certain public entities, prosecutors and federal law enforcement agencies.  Even if your case results in a dismissal or acquittal, this information is preserved indefinitely.  In other words, even if all charges are dropped, this does not cleanse your record of the notations showing allegations, arrest and prosecution.

FELONY CHARGES     

A felony is a crime punishable by minimum confinement of one year in state prison.  Felonies are commonly also punished by fines and formal, supervised probation.  Felony defendants are guaranteed certain rights because of the seriousness of the charges they face, including the right to an attorney and the right to a jury trial.  Felony cases can go on for months, and in unusual cases last several years, due to the gravity and complexity of these cases.

4 Stages of a Felony Case

ARRAIGNMENT:

The first stage is called an arraignment.  At arraignment, the court asks the defendant to enter a plea of "guilty" or "not guilty."  The court does not consider whether the charges are true or not, and no evidence is presented.  Prosecutors usually do not participate much in felony arraignments, unless there are other issues, such as setting or modifying bail.  At arraignment the court may set, lower, or raise the bail amount. At the arraignment, the court will set a pretrial, or "D&R," date, and a preliminary hearing date. The preliminary hearing will be set within ten (10) court days of the arraignment, unless you agree to waive this time limit.

PRETRIAL:

The second stage is called pretrial.  At the pretrial, the prosecuting attorney and defense attorney discuss the case in chambers with the judge.  The defense may ask for information and evidence from the prosecution, called discovery.  The attorneys and court also try to negotiate a resolution acceptable to both sides.  Defendants do not participate in the pretrial, although your personal appearance in court is required.  Pretrials give the defense an opportunity to get all the evidence it needs from the prosecution, time to consider and explore that evidence, and an opportunity to make efforts at negotiation.

PRELIMINARY HEARING

The third stage is the preliminary hearing.  A preliminary hearing is like a mini trial, except there is no jury and the Judge decides if there is sufficient evidence to hold the defendant for trial.  At the preliminary hearing, the prosecutor must prove to the Judge probable cause.  Essentially, the prosecutor must prove to the judge that it is likely that the defendant committed the crime charged.  The prosecutor will attempt to accomplish proving probable cause by calling witnesses to testify.  A typical preliminary hearing will have both alleged victims and police officers testifying.      

ARRAIGNMENT:

If the preliminary hearing court determines there is probable cause to hold the defendant for trial, then the defendant is once again arraigned and pleads guilty or not guilty.

PRE TRIAL:

Once again, there can be several pre trials before trial.  At the pretrial, the prosecuting attorney and defense attorney discuss the case. The defense may ask for information and evidence from the prosecution, called discovery. The attorneys also try to negotiate a resolution acceptable to both sides. Defendants who have attorneys do not participate in the pretrial.  A typical case will have two or three pre trials.  Pre trials give the defense an opportunity to get all the evidence it needs, time to consider that evidence, and an opportunity to make efforts at negotiation.

TRIAL:

A Jury trial consists of 12 impartial jurors picked randomly from the community.  To obtain a guilty verdict, the prosecutor must prove to the jury that the defendant is guilty beyond a reasonable doubt. The jury must decide unanimous of either guilt or innocence.   If the jury can’t make a decision, then a mis-trial maybe declared.  If a Mistrial is declared, then the prosecutor has several options: 1. Re-file the charges and begin a new trial 2. Negotiate a plea bargain 3. Not re-file the charges.

Punishment:

If the jury finds the defendant guilty, punishment can include anything from no jail time to county jail with probation or state prison.  If the judge orders a state prison sentence, then the sentencing the relevant Penal Code section will determine the amount of time spent in prison.

Other Consequences of a Felony Conviction:

Some important consequences of a felony conviction include a prohibition from possessing firearms and voting.

Some Crimes can be charged as either a felony or misdemeanor; these crimes are called “wobblers”.  Even if the defendant pleads to a felony or found guilty by jury to a felony, the felony can be reduced to a misdemeanor at a later date.

 

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